Free Speech Rights on Community College Campuses (CCD) - School & College Legal Services of California

Our office regularly receives questions regarding the free speech rights of community college students, employees, and third parties. Set forth below is a general overview of the legal issues pertaining to this topic.

LEGAL UPDATE

May 18, 2017

To: Superintendents/Presidents/Chancellors, Member Community College Districts

From: Patrick C. Wilson, Senior Associate General Counsel

Subject: Free Speech Rights on Community College Campuses

Memo No. 12-2017 (CC)

Free Speech Rights on Community College Campuses

Student and/or Third Party Free Speech Rights on Campus

The analysis of a free speech question begins with a review of the “forum” where the speech is occurring. If the speech occurs at a traditional public forum like a city park, square, or the college plaza, the speech will be entitled to heightened protection. If occurring in the college library or the business office, the speech rights are much diminished.

1) Public colleges must allow the “free and unfettered interplay of competing views” subject to reasonable time, place and manner regulations.

Unlike K-12 schools where the campuses are generally closed to outsiders[1], the courts have repeatedly held that “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools of higher learning.”

The core principles of the First Amendment “acquire a special significance in the university setting, where the free and unfettered interplay of competing views is essential to the institution’s educational mission.”

Nonetheless, the courts also recognize that colleges have the inherent power to adopt regulations to protect the college and its property:

“We hold that a college has the inherent power to promulgate rules and regulations; that it has the inherent power properly to discipline; that it has power appropriately to protect itself and its property; and that it may expect that its students adhere to generally accepted standards of conduct.” Esteban v. Central Missouri State College (8^th Cir. 1969) 415 F. 2d 1077, 1089. (College students could be disciplined for disruptive speech and conduct on campus.)

This regulation may include, for example, rules restricting public access to the college library, gym and other college facilities. The U.S. Supreme Court explained:

“A university differs in significant respects from public forums such as streets or parks or even municipal theaters. A university’s mission is education, and decisions of this Court have never denied a university’s authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities. We have not held, for example, that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings.” Widmar v. Vincent (1981) 454 U.S. 263, 268 note 5.

Education Code section 76120 codifies this authority when it authorizes Districts to adopt regulations relating to free speech activities “which shall include reasonable provisions for the time, place and manner of conduct of such activities.”

Thus, the District Board of Trustees may adopt reasonable time, place and manner regulations that govern free speech activities on its campuses. The regulations must be content neutral, they need to be narrowly tailored to address legitimate concerns, and they must leave open ample alternative channels of communication. Khademi v. South Orange County Community College District (2002)194 F. Supp. 2d 1011. Examples of specific time, place and manner regulations are discussed below.

2) Colleges must tolerate protester activity during a free speech event, even if somewhat disruptive, at a traditional public forum like a free speech zone.

Traditional public forums include city parks, sidewalks, squares, roadways, and public college quads and free speech zones. Free speech activities in these areas can be robust and disruptive, and still be protected under the First Amendment.

In a federal court case involving free speech activities at San Francisco State University in 2007, the district court reviewed the following: the College Republicans club sponsored an anti-terrorism rally at the Malcolm X Plaza on campus. There were visual displays, speeches and music. The location of the rally, at the student plaza, was a “traditional public forum, where the most expansive free speech rights exist,” the judge explained.

During the rally, club members produced a flag for Hamas and one for Hezbollah and began stepping on them. This elicited a strong response and a heated debate. After the rally, the student club sponsors were threatened with discipline because the rally was not “civil”, as outlined in college regulations. The court found the term “civil” was both “opaque and malleable,” while the student speech at issue was entitled to protection: “it is controversial expression that it is the First Amendment’s highest duty to protect…popular views need no protection.” Thus, the court found that the students could not be disciplined based on the policy then in place, which was too vague.[2]

This case underscores the fact that when students or others are engaged in free speech activities at a “traditional public forum” location, like the quad or plaza, the courts will limit the College’s ability to discipline the speaker for controversial ideas and actions, even if the speakers are provocative and even if the speech elicits a strong response. (This is similar to the rule against allowing a “heckler” to stop protected speech, the so called impermissible ‘heckler’s veto’.) In any event, the District must have a clear student discipline policy to address issues that can be the subject of discipline, like hate speech.

In another case involving free speech on public property, the Ninth Circuit held that the owners of the Cow Palace in San Francisco could not relegate an animal rights protest group to a ‘free speech’ area that was not easily accessible to the target audience at that public venue. The court noted that parking areas, pedestrian walkways and the exterior walkways outside of a public convention center were “public fora.” As a result, protesters could congregate there and engage in free speech activities. Patrons at the event would need to tolerate the “annoyance and inconvenience” that resulted.[3] However, if it can be shown that the location of the activities may be unduly disruptive (e.g. in a congested parking area where traffic may be impaired), the public agency may impose reasonable restrictions, including, for example, a designated zone for protesters so long as it is accessible to the target audience.

3) Education Code section 66301 grants broad free speech rights to college students.

Education Code section 66301 grants broad free speech rights to community college students; it provides in part:

“Neither … the governing board of a community college district, nor an administrator of any campus of those institutions, shall make or enforce a rule subjecting a student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.

***

(d) This section does not prohibit the imposition of discipline for harassment, threats, or intimidation, unless constitutionally protected.

(e) This section does not prohibit an institution from adopting rules and regulations that are designed to prevent hate violence, as defined in subdivision (a) of Section 4 of Chapter 1363 of the Statutes of 1992, from being directed at students in a manner that denies them their full participation in the educational process, if the rules and regulations conform to standards established by the First Amendment to the United States Constitution and Section 2 of Article I of the California Constitution for citizens generally.

(f) An employee shall not be dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against solely for acting to protect a student engaged in conduct authorized under this section, or refusing to infringe upon conduct that is protected by this section, the First Amendment to the United States Constitution, or Section 2 of Article I of the California Constitution.”

4) Because a college library is not a “public forum,” college library restrictions on student internet activity have been upheld notwithstanding EC 66301.

In Crosby v. South Orange County Community College District (2009) 172 Cal.App. 4th 433, the court considered a student’s challenge to a college regulation that resulted in minor discipline due to the student’s violation of the District’s Library Internet Use Policy. The student argued that the college’s discipline violated Education Code section 66301 and his free speech rights. The court disagreed, finding that the College’s library was not a traditional public forum and that the College was entitled to limit computer use in the library to educational and employment uses. Accordingly, the student’s claim was dismissed.

5) Student speech may be restricted if it takes place in a manner that indicates sponsorship by the College.

In Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), a high school principal removed from a school newspaper two pages containing an article describing some of the school’s students’ experiences with pregnancy and an article discussing the impact of divorce on a number of the school’s students. After concluding that the school newspaper was a nonpublic forum, the U.S. Supreme Court determined that school officials could regulate the newspaper’s contents in “any reasonable manner.” The Court then distinguished between toleration of student speech—addressed in Tinker—and the affirmative or perceived promotion or sponsorship of student speech. “The latter question,” the Court wrote:

“concerns educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.”

Pursuant to this analysis, the Hazelwood Court declared that a school may “disassociate itself … from speech that is, for example, ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.” Id. In addition, schools retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with the shared values of a civilized social order, or to associate the school with any position other than neutrality on matters of political controversy.

While Hazelwood was a K-12 case, courts have adopted this analysis at the college and university level as well. However, there are contrary cases. For example, in DiBona v. Matthews (1990) 220 Cal.App. 3d 1329, a community college instructor sued the San Diego Community College District after an administrator cancelled a drama class in which a controversial play was to have been performed. (The play depicted a police officer shooting a suspect, and then planting a weapon on the body.) The court ruled for the instructor, finding that the college did not have valid reasons for cancelling the class under the First Amendment.

6) Students have the right to form clubs with official campus recognition consistent with College regulations.

In Healy v. James (1972) 92 S.Ct. 2338, the U.S. Supreme Court ruled in favor of students at a public college in Connecticut who wished to form a college club that would be affiliated with the Students for a Democratic Society (“SDS”), which was a radical student organization.

The college president denied the club’s application for official recognition on the grounds that the club’s philosophy was antithetical to the school’s policies. The lack of official recognition meant that the club could not easily access the student newspaper, they could not use certain campus bulletin boards, and they could not use campus facilities to hold meetings.

The students sued. In ruling for the students, the Court found that the students had a First Amendment right to associate with one another. The Court explained that once the students filed an application for club recognition in conformance with the college’s requirements, the burden was on the college to justify any rejection. The college’s explanation for the denial – that the club’s philosophy was objectionable – was “no reason” to deny the club official recognition. The Court observed that a stronger record of illegal actions by the SDS would have likely supported denial of official recognition for this club.

II.

Examples of time, place or manner restrictions affecting student/protester speech.

1) No overnight camping on public property and trespass rules have been upheld.

Protesters have argued that “camping” on public property is protected symbolic speech. However, the courts have consistently found that over-night camping on public property, except in areas expressly approved for that purpose, is outside the protection of the First Amendment. In particular, protesters have no right to build structures or camp on public property.

For example, in State v. Ybarra (1976) 550 P.2d 763, the court of appeal in Oregon upheld a trespassing conviction as to a student who had erected a tent on the lawn at Portland State University.

In Clark v. Community for Creative Non-Violence (1984) 468 U.S. 288, the U.S. Supreme Court held that the National Park Service could deny permission to protesters who wished to sleep in temporary structures in Lafayette Park in Washington D.C. The Court held that expression under the First Amendment is subject to reasonable time, place and manner restrictions. Because the government had a valid aesthetic interest in maintaining its parks in an attractive and intact condition, the protesters did not have the right to camp in the park other than at designated campsites.

In University of Utah v. Peterson (1986) 649 F. Supp. 1200, the court found that shanties that had been erected by students at the University of Utah to protest apartheid were symbolic speech; however, the court required that the shanties be removed at night.

This rule has been codified in California in which Penal Code § 647(e), provides that every person who “lodges” at public or private property without permission is guilty of disorderly conduct. The word “lodge” implies more than transient occupancy. This provision would support a ban on camping at a college campus.

Penal Code section 602(o) also makes it illegal for a person to refuse to leave land, not then open to the general public, after having been requested to leave by the owner. This section can be used to enforce a reasonable time, place or manner restriction. For example, interpreting a similar statute, the Supreme Court of Hawaii upheld a trespass conviction after a student refused to leave a “sit in” at the university’s ROTC building after having been requested to do so by the university president. The court held that a person can commit trespass on publicly owned property where his presence is not authorized. State of Hawaii v. Jordan (1972) 500 P. 2d 560.

2) A “no structures” policy on College grounds has been upheld.

The University of Virginia adopted a regulation that prohibited structures on the main lawn of the university; based on this rule, a student-erected “shanty” was removed from the main lawn–the shanty was part of a protest over apartheid in South Africa. When challenged as a violation of the First Amendment, the initial regulation was invalidated as overbroad; however, the revised “lawn” regulation was upheld in Students v. O’Neil 838 F.2d 735 (4th Cir. 1988). The court found that the regulation was properly based on valid aesthetic concerns and it did not prohibit other expressive activities by students on the lawn.

Similarly, a University of Texas regulation that prohibited the display of student-erected “Justice for All” exhibits from 8 a.m. to 5 p.m. on the Main Plaza of the university was upheld. The court found that the university’s interest in protecting the “visual portal of the university” was legitimate. The court noted that protesters could still gather and protest at the plaza; they just could not erect exhibits there. Justice v. Faulkner (unpublished) 2004 WL 3957872.

In a case from Ohio, a federal court held that a labor union was entitled to display a large “rat balloon” during its labor protest on the city’s public right of way. The court quickly concluded that this was First Amendment expression in a traditional public forum. While the balloon may be considered a structure, the court found it was transient and non-disruptive, and therefor protected by the First Amendment. Tucker v. City of Fairfield, Ohio (6^th Cir. 2005) 398 F.3d. 457.

3) A “no demonstrations inside of college buildings” regulation has been upheld.

A “place” regulation that was upheld in 1971 involved a prohibition at Madison College in Virginia against demonstrations inside the buildings at the college. The court noted that college buildings are generally dedicated to classrooms, administrative offices, libraries, health centers or dormitories where order and study are expected. Because the activity at issue–a sit in to protest a personnel action against instructors at the College–was deemed to be disruptive, the court found that the prohibition was valid, noting that protests were still allowed on campus outside of the buildings. Sword v. Fox 446 F.2d 1091 (4th Cir. 1971).

California Penal Code section 602(q) provides that a trespass occurs when a person refuses to leave a public building after its regular time for closing. This “time” restriction was upheld in In Re Bacon (1966) 240 Cal.App. 2d 34, where several students refused to leave the U.C. Berkeley administration building after the usual closing time. The court affirmed the trespass conviction, explaining that “business ceased when the building became regularly closed and those persons to whom the grievances were addressed were entitled to cease their active school duties and responsibilities for the day.”

In Parrish v. Municipal Court 258 Cal.App. 2d 497 (1968), the court upheld a trespass conviction for a defendant/protester who refused to leave a welfare office at closing time, explaining: “there’s a time and place for everything.”

In general, the interior use of college buildings is governed by the Civic Center Act. Thus, civic organizations separate from the college district, such as a student club or union or outside group or organizations, may hold events and disseminate information on school grounds that advocate for or against political positions providing they receive approval to use school facilities for such purposes through the “Civic Center Act.” Groups or individuals with opposing viewpoints have the same right to use school facilities under the Civic Center Act. “The First Amendment precludes the government from making public facilities available to only favored political viewpoints; once a public forum is opened, equal access must be provided to all competing factions.” Stanson v. Mott (1976) 17 Cal.3d at 219.

4) Limits on amplified noise that is disruptive have been upheld.

The courts have also endorsed a “manner” regulation that limits amplified or excessive noise generated by protesters, at least where the noise is disrupting legitimate activities. E.g. Graynard v. City of Rockford (1972) 408 U.S. 104.

5) Limits on distributing leaflets on campus have often been struck down as overbroad.

The complete prohibition of hand billing at the University of Arizona was found to be unconstitutional by the Ninth Circuit in Jones v. Board of Regents 436 F.2d 618 (9th Cir. 1970). The court observed that the complete ban of this type of core political speech could not be justified; a “place” restriction must still allow for alternate forums for protest.

A complete ban on anonymous leafleting at the University of Texas was stricken by the Fifth Circuit. The court found that the asserted justification–to prevent littering–was not sufficient in light of the long established constitutional protection afforded to this type of speech. Justice v. Faulkner (unpublished) 2004 WL 3957872.

A ban on leaflets on windshields, parking lots and inside buildings at a California community college was invalidated as overbroad. The court found that the regulation would ban distribution of the campus newspaper and campaign materials, which are core protected speech. As such, the regulation was not “narrowly tailored” and therefore was invalid. Khademi v. South Orange County Community College District (2002) 194 F. Supp. 2d 1011.

6) Passive non-disruptive speech is protected, even inside the classroom.

A college cannot prohibit students from wearing political buttons or armbands on campus, even inside the classroom, Tinker v. Des Moines Independent Community School District (1979) 393 U.S. 503 (K-12 student was entitled to wear a black armband in class so long as the activity did not disrupt school activities).

7) A College cannot require a discretionary permit before students or others can engage in free speech activities at a traditional public forum.

In a 2009 case involving City College of San Francisco, an individual was on campus distributing literature regarding the “Jews for Jesus” organization. Campus police told him to stop unless he had a permit that was required by College regulations. A federal court lawsuit ensued.

The district court noted that “the distribution of free religious and political literature is precisely the sort of speech” protected by the First Amendment. Moreover, “a primary purpose

of a college or university is to contribute to the exchange of ideas. Sidewalks and plazas on a publicly supported college campus constitute a public forum” under the state and federal constitutions. Thus, as to outdoor pathways and lawn areas (like a quad or plaza), the Court held the College may not require a permit prior to the exercise of non-disruptive free speech activities.[4]

III.

Other Limits on Free Speech at a College campus

California law provides the following additional restrictions.

1) No disturbing the peace at a Community College by non-students.

Penal Code § 415.5 provides that any person who is not a registered student who maliciously and willfully disturbs another person by loud and unreasonable noise at a community college is guilty of a misdemeanor.

Penal Code § 626.6 provides that a non-student who commits any act likely to interfere with the peaceful conduct of the activities of the campus may be directed to leave, and if he fails to do so, he may be excluded from campus for up to seven days.

2) No obstruction of instructors or students at a Community College.

Penal Code § 602.10 provides that a person who, by physical force (including one who acts to impede access), willfully obstructs any student or teacher seeking to attend or instruct a class with the intent to prevent attending or instruction is guilty of malicious mischief.

3) No unlawful assembly.

Penal Code §§ 407-408 provide that any person, in concert of another, who engages in a lawful act in a violent, boisterous or tumultuous manner is guilty of a misdemeanor. These sections must be carefully applied to avoid punishing legitimate speech.

4) No willful disruption of the orderly operation of the campus or facility.

Penal Code § 626.4(a) provides that the chief administrative officer of a campus may notify a person that consent to remain on campus has been withdrawn whenever there is reasonable cause to believe that such person has willfully disrupted the orderly operation of the campus.

If the individual refuses to leave, he can be cited and an exclusion order issued prohibiting the student’s return to campus for up to 14 days.

In Braxton v. Municipal Court (1973) 10 Cal. 3d, 138, the California Supreme Court applied this section to protests that had occurred at San Francisco State University. The Court found that the exclusion order process of § 626.4 could be utilized when:

(a) students or non-students engaged in overt acts of violence or otherwise engaged in illegal conduct which disrupts “the orderly operation” of the campus, and

(b) the student/non-student is provided with notice and a “hearing” prior to exclusion from the campus, absent exigent circumstances.

IV.

The Speech Rights of the College District Board of Trustees

1) A governing board may express its opinion regarding a ballot measure at a public meeting.

Education Code section 7054(a) provides that:

“No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.”

In Choice-in-Education League v. Los Angeles Unified School District (1993) 17 Cal.App.4th 415, the court considered whether it was proper for the school district board of trustees to announce at a public meeting, which was televised, its opposition to a proposed “choice in education” ballot initiative. In finding that the board’s conduct was legal, the court noted that speakers in favor of the initiative were afforded an opportunity to speak at that board meeting in accordance with the Brown Act. The fact that no one chose to speak in favor of the initiative at the meeting did not bar the board from expressing its view on the initiative. Choice-in-Education League v. Los Angeles Unified School District (1993)17 Cal.App.4th 415, 429. See also Vargas v. City of Salinas (2009) 46 Cal.4th 1.

Note: the Board may express its opinion in a resolution, but it should refrain from telling voters how to vote.

Districts must be cautious regarding how to disseminate the Board’s opinion since section 7054 does not permit District funds to be spent to further political advocacy. However, the Board resolution could be posted on the District website in the same manner as other District resolutions.

2) Addressing a disruption at a Board of Trustees meeting.

When there is disorderly conduct at a Board of Trustees meeting, the Brown Act provides as follows:

“In the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue in session. Only matters appearing on the agenda may be considered in such a session. Representatives of the press or other news media, except those participating in the disturbance, shall be allowed to attend any session held pursuant to this section. Nothing in this section shall prohibit the legislative body from establishing a procedure for readmitting an individual or individuals not responsible for willfully disturbing the orderly conduct of the meeting.” Government Code section 54957.9.

Other Types of Speech by a College District Administration

or Board May Also Be Protected

When a college district wishes to express its opinion about matters of public concern and this speech does not involve a ballot measure or the election of candidates subject to Education Code section 7054, the College is given wide latitude to express its message without having to also allow competing messages.

1) When the College creates a “bulletin board” to state its views on a topic, it is not required to allow others to use that bulletin board to convey a different message.

In Downs v. Los Angeles Unified School District, 228 F.3d 1003 (9th Cir.2000), a public high school created bulletin boards for the purpose of recognizing Gay and Lesbian Awareness month. The content of the boards was subject to the school principal’s oversight. Downs, a high school teacher who objected to recognition of Gay and Lesbian Awareness, created a competing bulletin board in the school titled “Redefining the Family.” He sued after the school ordered him to remove his materials. The Ninth Circuit ruled for the District, concluding that the district bulletin boards were school speech and, as such, the school was well within its rights to make content-based choices regarding what it had to say on the boards:

“We conclude that when a public high school is the speaker, its control of its own speech is not subject to the constraints of constitutional safeguards and forum analysis, but instead is measured by practical considerations applicable to any individual’s choice of how to convey oneself: among other things, content, timing, and purpose. Simply because the government opens its mouth to speak does not give every outside individual or group a First Amendment right to play ventriloquist.”

The Court explained: “Our decision is consistent with cases holding that school teachers have no First Amendment right to influence curriculum as they so choose. See, e.g., Edwards, 156 F.3d at 491–92 (holding that professor has no First Amendment right to compel university to allow him to teach class from religious perspective); Boring v. Buncombe County Bd. of Educ., 136 F.3d 364, 370–71 (4th Cir.1998) (en banc) (teacher’s choice of play not constitutionally-protected speech); Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1176 (3d Cir.1990) (holding that teacher has no First Amendment right to employ classroom teaching methodology of choice); Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794, 795 (5th Cir.1989) (teacher’s choice of supplemental reading list not constitutionally-protected speech).

2) A College is not required to punish controversial speech by a faculty member even if it is upsetting to protected groups on campus.

In Rodriguez v. Maricopa County Community College District, 605 F.3d 703 (9th Cir.2010), Hispanic employees sued the college district, contending that the district’s failure to properly respond to a professor’s racially charged emails created a hostile work environment in violation of Title VI I and the Equal Protection Clause.

The Ninth Circuit held that the professor’s speech was not unlawful harassment, the court found that the college was not “endorsing” the speech since the college president and others had clearly stated their disapproval of the instructor’s message.

The court explained: “The First Amendment demands substantial deference to the college’s decision not to take action against [the faculty member]. The academy’s freedom to make such decisions without excessive judicial oversight is an “essential” part of academic liberty and a “special concern of the First Amendment.” Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) see also Brown v. Li, 308 F.3d 939, 952 (9th Cir.2002); Edwards v. Cal. Univ. of Penn., 156 F.3d 488, 492 (3d Cir.1998) (Alito, J.).

“If colleges are forced to act as the hall monitors of academia, subject to constant threats of litigation both from professors who wish to speak and listeners who wish to have them silenced, “[m]any school districts would undoubtedly prefer to ‘steer far’ from any controversial [professor] and instead substitute ‘safe’ ones in order to reduce the possibility of civil liability and the expensive and time-consuming burdens of a lawsuit.” Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1030 (9th Cir.1998). To afford academic speech the breathing room that it requires, courts must defer to colleges’ decisions to err on the side of academic freedom. Otherwise, schools will inevitably reassess whether hiring a lightning rod like Kehowski—or, for that matter, Larry Summers or Cornel West—is worth the trouble.”

The Court noted that the College could have restricted the access to the District email system to “official business,” but it chose not to do so.

3) A College may limit advertising at College facilities that is inconsistent with its mission.

In Planned Parenthood v Clark County School District, 941 F.2d 817(9^th Cir. 1991), the Court considered a school educator’s refusal to accept advertisements for Planned Parenthood in student newspapers, yearbooks, and athletic programs. Like Hazelwood, Planned Parenthood dealt with an issue of school sponsorship. Also like Hazelwood, the Planned Parenthood court decided that the school had created only a nonpublic forum in its acceptance of advertisements. The divided Court upheld the school’s decision.

Although Planned Parenthood was a K-12 case, its reasoning has been applied in other contexts. Thus, in Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085, 1094 n. 11 (8th Cir.2000), the Court held that a campus radio station was not required under the First Amendment to accept funds from the KKK to underwrite programming. (The KKK wanted the public recognition on the radio that other donors received.)

In Arkansas Educational Television Commission v. Forbes 118 S.Ct. 1633 (1998), the U.S. Supreme Court upheld a television station’s right to exclude a candidate from a debate, explaining:

“Much like a university selecting a commencement speaker, a public institution selecting speakers for a lecture series, or a public school prescribing its curriculum, a broadcaster by its nature will facilitate the expression of some viewpoints instead of others.” 523 U.S. at 674.

VI.

Public Employees Have Limited Free Speech Rights at a Public Community College

Public employees, when engaged in work-related speech, have diminished First Amendment rights.

1) Public employees are not entitled to First Amendment protection for many types of work-related employee speech.

In Connick v. Myers, the U.S. Supreme Court held that when a public employee speaks, not as a citizen upon matters of public concern, but as a public employee regarding matters only of personal interest, the First Amendment will not typically protect the public employee from the ramifications of the speech, including termination of employment.

In Connick, an employee of the District Attorney’s office, who opposed the D.A., circulated among other office employees a questionnaire soliciting the views of other employees regarding office morale, the office transfer policy and the need for a grievance committee. The Court found that most of the questionnaire was not related to matters of public concern, and therefore the employee could be disciplined for that activity. Her conduct was not protected by the First Amendment because the activity would disrupt the office and undermine the authority of the head of the office.

In Garcetti v. Ceballos 126 S.Ct. 1951 (2006), the Court held that when a public employee makes a statement pursuant to his/her official duties, they are not speaking as citizens. Thus, a public attorney who misled a judge could be disciplined notwithstanding the First Amendment.

Note: it may be difficult at times to determine if the employee speech touches on a matter of “public concern” or not. In general, the courts look to whether the speech is calculated to disclose official misconduct, or whether it deals with a ‘personal dispute’ or work related grievance.

2) An Instructor may be compelled to remove a religious message posted in the classroom.

In Johnson v. Poway Unified School District, 658 F.3d 954, 961 (9th Cir. 2011), the Ninth Circuit reviewed whether a teacher had a right to post religious messages in his classroom. The court held that that a forum-based analysis was not appropriate “where the government acts as both sovereign and employer.” Id. Instead, courts must apply a Pickering balancing analysis, which ultimately “reconcile[s] the employee’s right to engage in speech and the government’s right to protect its own legitimate interests in performing its mission.’ ”

The district court determined that the school district violated Johnson’s First Amendment rights by forcing him to remove the religious banners from the classroom. The Ninth Circuit disagreed, holding that the district court erred at the outset by applying a forum-based analysis, rather than a Pickering-based inquiry.

The court concluded that the teacher, Johnson, could not survive a Pickering analysis because he was not speaking as a private citizen: “Certainly, Johnson did not act as a citizen when he went to school and taught class, took attendance, supervised students, or regulated their comings-and-goings; he acted as a teacher—a government employee. Similarly, Johnson did not act as an ordinary citizen when ‘espousing God as opposed to no God’ in his classroom.” Id. at 968. As a result, the Court found that the teacher’s religious posters could be removed from the classroom by the school administration.

3) A District-moderated List Serve is not a “public forum”; limits on faculty use of the List Serve upheld.

In Preservation of the First Amendment v. Idaho State University 2012 WL 1313304 and 857 F. Supp. 2d 1055 (2012), the Court held that a public university may prevent faculty using a university-moderated and university-controlled listserve from distributing emails that were at odds with positions taken by the university administration. The court noted that the faculty could use other forums to communicate their message.

4) An instructor who sponsored an unapproved field trip to a political protest could be disciplined by the college district.

In Hudson v. Craven (2005) 403 F. 3d 691, the Ninth Circuit upheld a college’s decision to discipline an adjunct faculty member who insisted on taking her students on a field trip to a WTO protest in Seattle. The court found that she could have made the trip as a private citizen, but her choice to make the trip as a representative of the college was not protected free speech; it intruded on the college’s rights and suggested that the college endorsed her “message”, which it did not.

5) Professor speech in the classroom may be protected by “academic freedom.”

In some circumstances, not well defined, an instructor at a college or university may be protected by ‘academic freedom’ with regard to controversial comments during a college lecture, and related conduct.

Academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” Keyishian v. Bd. of Regents of Univ. of State of N. Y., 385 U.S. 589, 603 (1967).

6) District employees may engage in free speech and political activities during off duty time.

Political activities are allowed during off duty time so long as District resources are not used. No political activities are allowed during work time.

During duty free time, faculty have the right to discuss with fellow teachers issues of public concern (such as cutbacks to educational funding) in faculty rooms and lunchrooms and similar facilities. Los Angeles Teachers Union, Local 1021, Am. Federation of Teachers v. Los Angeles City Bd. of Ed. (1969) 71 Cal.2d 551, 560. Adcock v. Board of Education (1973) 10 Cal.3d 60, 65.

Education Code section 7056 provides:

“(a) Nothing in this article prevents an officer or employee of a local agency from soliciting or receiving political funds or contributions to promote the support or defeat a ballot measure that would affect the rate of pay, hours of work, retirement, civil service, or other working conditions of officers or employees of the local agency. These activities are prohibited during working hours. In addition, entry into buildings and grounds under the control of a local agency for such purposes during working hours is also prohibited.

(b) Nothing in this section shall be construed to prohibit any recognized employee organization or its officers, agents, and representatives from soliciting or receiving political funds or contributions from employee members to promote the support or defeat of any ballot measure on school district property or community college district property during nonworking time. As used in this subdivision, “nonworking time” means time outside an employee’s working hours, whether before or after school or during the employee’s luncheon period or other scheduled work intermittency during the school day.”[5]

7) A District may regulate the wearing of political buttons by employees or other political expression by employees while on duty.

A District can restrict political activities that occur during instructional activities, but not during non-instructional time, such as a lunch break.

In California Teachers Association v. Governing Board (1998) 45 Cal.App.4^th 1383, the court held that under Education Code section 7055, a school district could prohibit its employees from wearing political buttons during “instructional activities.” This case considered the interplay between section 7055’s grant of authority to regulate employee political activity and constitutional free speech guarantees. The court concluded that these constitutional rights should be read to limit regulation of political advocacy under section 7055 to instructional settings: “Under the California Constitution, as well as the First Amendment, school authorities retain the power to dissociate themselves from political controversy by prohibiting their employees from engaging in political advocacy in instructional settings.” The court also expressly held that “as applied to non-instructional settings [the] district’s regulation is unconstitutional but that in instructional settings it may be enforced.” See also 77 Ops.Cal.Atty.Gen 56 (1994).

8) Faculty may wear union buttons while in the classroom.

The Public Employment Relations Board has held that school districts cannot prohibit teachers from wearing union buttons in the classroom absent “special circumstances.” One such circumstance might be “distraction,” but PERB found that the district in that case failed to establish distraction as a special circumstance justifying its ban on union buttons. In addition, the Board rejected the employer’s contention that the buttons at issue could be considered “political activity” within the meaning of Education Code section 7055. 29 PERC P 40 (2004).

9) A District must prohibit the use of District mailboxes or facilities to distribute partisan materials.

Pursuant to Education Code section 7054, a District must prohibit the use of campus mailboxes or facilities for distribution of materials urging the support or defeat of any ballot measure or candidate.

In San Leandro Teachers Association v. Governing Board (2009) 46 Cal. 4^th 822, the California Supreme Court reached a similar result when it upheld a school district’s prohibition of the use of internal faculty mailboxes by the teacher’s union as a means of distributing partisan political information to its members. Finding that this use violated section 7054, the court held that the internal teacher mailbox system is not a public forum and therefore the district was not required to allow such use by the teacher’s union.

The court indicated that the teacher’s union could use the mailbox system to disseminate non-partisan union information.

10) An employee may be prohibited from displaying a large campaign sign on her private car in the District lot

The two-by-eight foot sign indicated which school board candidates the union endorsed and was intended to influence voters in the upcoming election. The district’s request that the sign be removed or the vehicle parked off school property was challenged as an unfair labor practice and ultimately addressed by the California Public Employment Relations Board. Under the circumstances of the case, PERB found the school’s actions were allowable under Education Code section 7055. 24 PERC P 31053.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice. Application of the law may vary depending on the particular facts and circumstances at issue. We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

[1] E.g. Reeves v. Rocklin Unified School District (2003) 109 Cal.App. 4^th 652 (Anti-abortion group did not have the right to protest on a K-12 campus.)

[2] College Republicans at SFSU v. Reed 523 F.Supp. 2d 1005 (2007).

[3] Kuba v. 1-A Agricultural Association 387 F.3d 850 (9^th Cir. 2004).

[4] Jews for Jesus, Inc. v. City College of SF (2009) 2009 WL 86703. After this decision, the College amended its regulations to remove the permit requirement

[5] Contributions of money, materials, and time to a political campaign are subject to the Political Reform Act, and donors and recipients must comply with certain reporting requirements.

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